The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. The vocational plan under NOC 6623, Other Sales Related Occupations is appropriate; and 

2. Their wage loss benefits were reduced by the post-accident deemed earning capacity effective August 20, 2021.

A videoconference hearing was held on December 9, 2025 to consider the worker's appeal.

Issue

1. Is the vocational rehabilitation plan under NOC 6623, Other Sales Related Occupations, appropriate? 

2. Should the worker’s wage loss benefits be reduced by the post-accident deemed earning capacity effective August 20, 2021?

Decision

1. The vocational rehabilitation plan under NOC 6623, Other Sales Related Occupations is not appropriate; and 

2. The worker’s wage loss benefits should not be reduced by the post-accident deemed earning capacity effective August 20, 2021.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 79/18, dated June 13, 2018. The background will therefore not be repeated in its entirety.

The worker has an accepted WCB claim for a compound fracture to their right leg that resulted from a motor vehicle accident they were in while at work on November 6, 2013. The worker underwent surgery at a local emergency department where screws and plates were placed in their right leg on November 8, 2013.

Pursuant to Appeal Commission Decision No. 79/18, it was noted the worker reported ongoing difficulties with their right leg and required further surgery on April 12, 2017. As such, the noted Appeal Commission Decision determined the worker was entitled to wage loss benefits from May 1, 2016 to April 11, 2017, and the worker’s file was returned to the WCB’s Compensation Services for further adjudication.

At the request of the WCB, the worker attended for a call-in examination with a WCB medical advisor on September 12, 2018. The advisor opined the worker’s current diagnosis was post-traumatic arthritis of the right knee following a right proximal tibial fracture and noted the worker had some improvement in their right knee range of motion since the surgery on April 12, 2017 to remove the fixation hardware placed on November 8, 2013. In addition to restrictions placed on the worker’s driver’s license by the provincial authority, the WCB medical advisor recommended permanent restrictions of no repetitive kneeling, squatting or crawling; no ladder climbing and no repetitive stair climbing, and no prolonged walking or standing for more than 30 minutes. As the worker had ended their employment with the employer in April 2017, the worker was referred for vocational rehabilitation services on September 14, 2018.

On October 23, 2018, a Vocational Rehabilitation Initial Assessment was placed on the worker’s file by a WCB vocational rehabilitation specialist. Based on the worker’s transferable skills, general educational upgrading and basic computer skills tutoring were recommended. On April 11, 2019, a Stage 2 Transferable Skills Analysis was prepared for the worker by a WCB vocational rehabilitation specialist for NOC 7511, Transport Truck Driver. The WCB met with the worker on May 16, 2019, who noted disagreement with the proposed NOC. The worker advised they would be seeking an opinion from the provincial driver licensing authority regarding their ability to drive. On September 13, 2019, the worker contacted the WCB to provide an update on their driving assessment and the WCB’s vocational rehabilitation specialist contacted the worker to resume vocational rehabilitation planning. On October 25, 2019, a Vocational Rehabilitation Plan under NOC 7511, Transport Truck Driver, was placed to the worker’s file, set to end on December 22, 2019, with 31 weeks of job search services to be provided. On November 1, 2019, the WCB received a letter from the provincial driver licensing authority regarding an upcoming driver’s assessment for the worker and vocational rehabilitation planning was suspended, pending the outcome of the assessment.

The assessment took place on March 30, 2020 and was reviewed by a WCB medical advisor, who provided a further opinion on April 29, 2020, noting a change to the worker’s permanent restrictions. The restrictions were updated to: no standing or walking for prolonged periods, more than 30 minutes; no lifting more than 15 pounds; no carrying of weights; no pushing and pulling with force greater than 25 pounds; no ladders or repetitive stairs, with need for handrail; no kneeling, squatting or crawling; left sided gas pedal for driving; and use of left knee brace for walking. With the update in the worker’s restrictions, the file was returned to the WCB’s vocational rehabilitation services for creation of an updated plan for the worker.

A new Vocational Rehabilitation Plan for NOC 6623, Other Sales Related Occupations was developed for the worker and was placed to the worker’s file on September 3, 2020, with an end date of March 29, 2021. A deemed earning capacity was set at $600.00 per week. Due to the COVID-19 global pandemic and other issues, the Plan was extended to August 20, 2021.

A deem summary was placed to the worker’s file on August 11, 2021. The summary noted that effective August 20, 2021, the worker’s wage loss benefits would be reduced by the starting wage within NOC 6623, Other Sales Related Occupations. The summary was approved by the WCB’s Deem Committee, and the worker was provided with a formal decision letter on September 24, 2021.

The worker requested reconsideration of the WCB’s decision on their vocational rehabilitation plan and the reduction of their wage loss benefits to the Review Office on September 28, 2021. The worker noted in their submission they had not been provided with sufficient training to allow them to find substantial employment within the vocational rehabilitation plan established for them. As such, they noted their belief they required further training and benefits. On November 9, 2021, the Review Office determined the vocational plan under NOC 6623, Other Sales Related Occupations, was appropriate. The Review Office found the evidence supported there was a viable labour market for the proposed NOC and that the worker was capable of returning to work within the potential jobs within that NOC based on their current permanent restrictions. As such, the Review Office found the worker was capable of working within NOC 6623, Other Sales Related Occupations, which was an appropriate NOC for the worker and the implementation of a deemed earning capacity within that NOC effective August 20, 2021 was also appropriate.

The worker’s representative filed an appeal with the Appeal Commission on October 7, 2025 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the “Act”), regulations under the Act and the policies established by the WCB’s Board of Directors.

A worker is entitled to benefits under Section 4(1) of the Act where it is established that the worker was injured as a result of an accident at work. Under Section 37 of the Act, compensation is payable where the WCB determines that a worker has sustained a loss of earning capacity, an impairment, or requires medical aid as a result of an accident.

WCB Policy 43.00, Vocational Rehabilitation (the “VR Policy”), provides, in part:

Section I, Goals and Objectives:

1. The goal of vocational rehabilitation is to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker’s post-injury physical capacity, skills, aptitudes and, where possible, interests.

2. The WCB will help the worker as much as possible to be as employable as she or he was before the injury or illness. Once this is done and when necessary, the WCB will provide reasonable assistance to the worker so that she or he actually returns to work. However, services may not always continue until the worker actually returns to work.

…

Section V, Individualized Written Rehabilitation Plan (IWRP):

…

3. When developing the IWRP, the worker, the worker’s representative, advisor or union representative, the WCB and the employer (when involved) may pursue the established hierarchy of objectives. The WCB will document the outcome(s) of this joint process. Ideally, the worker’s healthcare practitioner will also be involved in this process. The IWRP will:

…

b. Describe the occupation or occupational group in which the worker can competitively pursue employment upon achievement of the vocational rehabilitation goal. This will be based on recognized methods of job classification. Where applicable, the description will include any community-specific features of the occupation as determined through job analysis. 

…

4. The WCB will develop the plan after adequate assessment. This assessment is meant to identify the skills possessed by the worker and skills to be acquired by the worker. Further, the plan will establish the worker’s post-plan earning capacity through analysis of the worker’s skills in comparison to the labour market.

5. The WCB will reasonably ensure that the plan is based on a realistic goal. A realistic goal is one which is within the worker’s physical, intellectual, vocational, and emotional capacities. In helping a worker establish a goal, the WCB will apply knowledge of the worker’s vocational profile, medical aspects of the worker’s condition, the worker’s interaction with the environment and the effort and persistence the worker demonstrates in the face of obstacles.

WCB Policy 44.80.30.20, Post-Accident Earnings - Deemed Earning Capacity (the “Deemed Earning Policy”), provides, in part:

I. Vocational Rehabilitation:

…

4. Deemed Earning Capacity Following Completion of a Plan:

…

f) Deemed earning capacity will be based on the established actual earnings for a given occupation. This amount will be presumed to be the minimum of the range for an occupation as established at the time of the Individualized Written Rehabilitation Plan and as confirmed after completion of the Plan.

Worker’s Position

The worker was present at the hearing, represented by a worker advisor. Written submissions were provided in advance of the hearing, and an oral submission was made at the hearing. The worker provided testimony by way of responses to questions posed by the advisor and members of the panel.

The position of the worker is that the vocational rehabilitation plan within NOC 6623 was inappropriate, and as a result, the implementation of a deemed earning capacity was also inappropriate.

It is argued that the Deemed Earning Policy requires the WCB to demonstrate that the worker has the physical capacity, education, skills, aptitudes, interests and personal qualities needed to obtain and keep employment in the occupation or group of occupations in the labour market. The worker’s position is that there was no evidence of a viable labour market in NOC 6623, nor was there evidence that the worker had the physical capacity, education, skills, personal qualities, or aptitude needed to obtain and keep employment in this occupation.

The worker submits that there were five potential occupations under NOC 6623, namely: Direct Distributors, Door to Door Salespersons, Street Vendors, Telephone Solicitors and Telemarketers and Demonstrators. It was further submitted that four out of the five potential jobs were outside of the worker’s restrictions due to the need to stand or walk for more than 30 minutes. The worker also submits that a license and criminal record check were required for a seller’s license, and the worker did not have a pardon for prior offenses so would not qualify for this license.

It was noted that the evidence on file is that the worker had a grade 9 education and based on assessments of their aptitude it was determined that their capacity to perform work requiring verbal reasoning and language usage was very limited.

The worker argued that only one job category was available to them – Telephone Solicitors. The evidence submitted by the worker was that the job listings for telemarketing positions required or preferred high school graduates, and that some required a minimum of one year experience or “proven sales experience”.

The worker’s position is that they did not have the ability to competitively find, compete for, obtain or keep full time employment in this NOC even if there was evidence of a viable labour market which the worker argues there was not. The worker’s argument in that regard is that the WCB did not demonstrate that work existed for NOC 6623 as is required by the Deemed Earning Policy and specifically stated that the Alberta Occupational Outlook 2019-2028 (Labour and Immigration, Government of Alberta, October 2019) confirms that “NOC 6623 shows a surplus of job seekers in 2019 beginning a trend with each year showing increasingly more job seekers than there are jobs.”

The worker is seeking that the decision of the Review Office be overturned.

Employer’s Position

The Employer did not participate in the hearing.

Analysis

Appropriateness of the Vocational Rehabilitation Plan (NOC 6623)

The first question before the panel is whether or not the vocational rehabilitation plan under NOC 6623, Oher Sales Related Occupations is appropriate.

The VR Policy requires that a vocational rehabilitation plan be based on a realistic and sustainable employment goal that reasonably takes into account the worker’s post-injury physical capacity, skills, aptitudes and, where possible, interests. The plan must also be supported by adequate assessment of the worker’s transferable skills and the actual demands of the target occupation.

The evidence before the panel establishes that the worker has permanent functional restrictions that significantly limit standing, walking, lifting, carrying, pushing, pulling, stair climbing, kneeling, squatting, and crawling. The worker also requires adaptive equipment for driving and a knee brace for walking. These restrictions materially limit the range of work the worker can safely and consistently perform.

The panel finds that NOC 6623, Other Sales Related Occupations, is a broad occupational group that includes a wide range of positions, many of which typically require prolonged standing, walking, physical activity, and regular movement throughout the workplace. On the evidence before the panel, the WCB did not sufficiently demonstrate that the types of jobs realistically available to the worker within this NOC would consistently fall within the worker’s permanent physical restrictions.

In addition, the panel finds that the WCB did not adequately consider the worker’s vocational profile beyond physical capacity. The evidence establishes that the worker has limited formal education, no meaningful prior experience in sales or customer-service based occupations, and a criminal record. The panel accepts that these factors materially affect the worker’s employability and competitiveness in the labour market, particularly in sales-related positions which typically require strong communication skills, prior experience, and employer trust.

The panel is satisfied that the WCB did not reasonably account for the significant barriers the worker would face in attempting to obtain employment within NOC 6623 given their limited education, lack of relevant work experience, and criminal record. These factors increase the difficulty of securing work and undermine the realism of the vocational goal set for the worker.

Further, the worker’s evidence that the training and supports provided under the plan were insufficient is consistent with the panel’s finding that the plan did not adequately prepare the worker to compete for employment in this occupational group.

On a balance of probabilities, the panel finds that the vocational rehabilitation plan under NOC 6623 was not based on a realistic and sustainable employment goal that reasonably took into account the worker’s physical, intellectual, vocational, and personal circumstances. Accordingly, the panel concludes that the vocational rehabilitation plan under NOC 6623 was not appropriate.

The worker’s appeal on the first issue is granted.

Reduction of Wage Loss Benefits Based on Deemed Earning Capacity

The second question before the panel is whether it was appropriate for the WCB to reduce the worker’s wage loss benefits based on a deemed earning capacity effective August 20, 2021.

The Deemed Earning Policy permits the WCB to implement a deemed earning capacity following completion of a vocational rehabilitation plan, based on the minimum earnings of the occupation identified in the plan, provided the plan is appropriate and realistically positions the worker to obtain employment.

Given the panel’s finding that the vocational rehabilitation plan under NOC 6623 was not appropriate, it follows that the deemed earning capacity flowing from that plan cannot be sustained. A deemed earning capacity presumes that the worker has been reasonably prepared and is capable of obtaining employment within the identified occupation.

The panel is not satisfied, on a balance of probabilities, that the worker was capable of competitively pursuing and maintaining employment within NOC 6623 as of August 20, 2021. The evidence does not establish that suitable employment consistent with the worker’s restrictions and vocational profile was realistically available, nor that the worker had been provided with sufficient training and support to overcome the substantial barriers to employment they faced.

Accordingly, the panel finds that the worker’s wage loss benefits should not have been reduced based on a deemed earning capacity effective August 20, 2021.

The worker’s appeal on the second issue is granted.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of February, 2026